Development applications to ACTPLA

Introduction

In the ACT the development of land which is not within a designated area under the NCP is managed by ACTPLA. ACTPLA also administers the Planning and Development Act 2007 (ACT) (‘Planning Act’). Chapter 7 of this Act provides the legislative framework for development approvals in the ACT and involves a three tier system of assessment tracks: code, merit and impact. There is a quick guide to development applications on the ACTPLA website which explains the three tracks (see the Contacts list at the back of this book). By checking the relevant development table and code, it is the applicant who must decide which of these assessment tracks is appropriate for the development in question. The ACTMAPi shows an area’s land use policy or zoning which also provides information on what development is allowed. A step by step guide to using ACTMAPi is also available. The relevant development table for a zone lists the minimum assessment track in which a development can be considered. Development tables can be accessed from the Territory Plan available on the ACT legislation register.

Some developments are exempt from the Act (ss 133-135), and some are prohibited (s 136). The Territory Plan (TP) (see also Chapter 2 in this Handbook for more detail about the TP) includes development tables for each land use zone in the ACT and these tables show whether a development is exempt, assessable or prohibited within that zone. If the development is assessable, the next step is to determine which assessment track is the correct track for that development, as the requirements for each are quite different. An applicant may pre-apply to ACTPLA with a development proposal and ACTPLA is obliged, after considering the proposal, to give advice on which assessment track applies, or if it is likely to be exempt or prohibited (s 138 and see below).

Depending on the type of development, ACTPLA may require approval or endorsement from various entities, such as ActewAGL, the Department of Territory and Municipal Services (TAMS) or the Conservator of Flora and Fauna if likely to have a significant adverse environmental impact on a protected matter (see below).

All territory land in the ACT is held under a leasehold title system so it is essential to consider the provisions of the lease to decide whether the lease purpose clause permits a particular development proposal to go ahead (see Chapter 2 in this Handbook for more information about the leasehold system in the ACT).

It is an offence to undertake development without development approval (s 199).

The ACT Minister for Planning is primarily responsible for the Planning Act and in this section of this chapter is referred to as the minister.

What is ‘development’?

Under the Planning Act development is defined very broadly to include:

• the erection, alteration or demolition of a building or structure
• the carrying out of earthworks or other construction work on or under the land
• the carrying out of work that would affect the landscape of the land
• using the land, or a building or structure on the land
• the subdivision or consolidation of the land
• the variation of a lease relating to the land (other than a variation that reduces the rent payable to a nominal rent)
• the display of signs or advertising material on the land (except in accordance with a permit or licence) (s 7).

If the development is not exempt from the Act, or prohibited under the Act, proposals for any of these developments will be assessable under either the code, merit or the impact tracks and will need to be approved by ACTPLA.

Exempt developments

Provided they comply with certain criteria and requirements, certain small-scale or less complex development proposals are classified as exempt and do not require development approval. Proposals are exempt either under the relevant development table of the TP, under section 134 of the Planning Act, or under Chapter 3 of the Planning and Development Regulation 2008 (ACT) (‘Planning Regulation’) (s 133). An exempt development does not include a proposed development assessable in the impact track nor does it include a development that is inconsistent with a conditional provision concerning a separate development approval on the same land (s 133(2)).

The requirements for exemptions vary according to the type of project. A list of the types of developments that are exempt from development approval and the relevant criteria and requirements can be found in Schedule 1 of the Planning Regulation. Examples of exempt developments include aerials and antennae, photovoltaic panels, single houses in new housing estates, decks, patios and terraces, demolition, fences, letterboxes, clothes lines, barbeques, satellite dishes, ponds, skylights and retaining walls (r 20 and Schedule 1). See also the ACTPLA website for more information on what is an exempt development.

ACTPLA must tell a proponent of a development proposal if the development is likely to be exempt (s 138 (4)(a)) and a person may apply for an exemption assessment to work out whether a development is an exempt development (s 138B).

While the development may be exempt from needing development approval, it may need approval from TAMS. For example, the development must not breach the Heritage Act 2004 (ACT) or the Tree Protection Act 2005 (ACT). Where an authorised use of the land or an existing building is exempt and there is a development proposal in relation to the land, the exemption ceases if the other development is not exempt from the need to obtain approval. For example, the use of land ceases to be exempt if a large building is constructed on the land and the construction the large building requires development approval (s 116A).

Proposals that are exempt under the Planning Act may be undertaken without a development application or approval. However, they may still require a building approval under the Building Act 2004 (ACT). For example, a single house in a new housing estate will be exempt from development approval, provided it meets certain design and siting requirements of relevant TP Codes, but will still require building approval regardless of meeting the first exemption.

Building approvals

Building approval is required for most developments to ensure the building complies with building laws, including the Building Code of Australia and must be sought before construction begins. Since 2012 the lodgement of building approvals and related forms are only accepted via the eDevelopment portal.

To get building approval a developer can:

• employ a licensed certifier, also known as a building surveyor
• apply for building approval and pay relevant fees (a certifier will address this)
• employ a licensed builder or be licensed as an owner-builder.

The appointment of a building certifier is regulated under the Building Act. Building certifiers act independently and are appointed by the landowner. Some certifiers will act as a works assessor and advise whether a house is exempt from requiring a development approval. They are responsible for:

• assessing building plans to determine whether the proposal can be constructed in accordance with the approved plans and the applicable legislation and codes i nspecting the building work during the construction phase to ensure the building work complies with the approved plans and associated legislation and standards, including the National Construction Code, Building Code of Australia. There are a number of stages of building work where an inspection is required and these should be discussed with the certifier
• issuing of a certificate of completion when satisfied the building work complies, or substantially complies, with the building approval and associated technical requirements, and lodgement of documentation with the Construction Occupations Registrar
• issuing approvals that include proposed site work such as driveways and damage to or removal of trees.

A certifier must not issue a building approval if carrying out the site work would result in the contravention of any law in force in the ACT or if contrary to any advice obtained by an entity on referral (s 30, 30A Building Act).

Most people engage the services of a builder prior to engaging a building certifier. For more information on building in the ACT, see the Consumer guide to building process.

Prohibited developments

Under the Planning Act (s 136) developments can be prohibited in one of two ways:

• A development may be prohibited under the relevant development table in the TP. For example, the High Density Residential Zone Table prohibits developments such as service stations, caravan parks, veterinary hospitals and car parks, while the Urban Open Space Zone prohibits developments such as childcare centres, cemeteries, overnight camping and mining.
• If the proposal relates to development in a future urban area and the structure plan for the area does not state that the development is permitted then the development will be prohibited. Note that this provision does not apply to the ACT government or a government authority.

Examples of possible prohibited developments are a paint factory in a residential area or commercial office accommodation in a suburban area (s 112(3)).

If a development is prohibited a person cannot apply for approval of the development proposal (s 136(1)). If however, a development is authorised by ACTPLA and subsequently becomes prohibited then the development can continue (s 201). The rationale being that if a development is lawful when it begins then it continues to be lawful.

It is an offence to undertake prohibited development, with a maximum penalty of up to 2,000 penalty units (currently $200,000) for an individual and 2,500 penalty units (currently $250,000) for a corporation (s 200).